What the Term Domicile Means in the Context of a Hong Kong Inheritance and Your Subsequent Citizenship Status

The concept of domicile determines which legal system governs the distribution of your estate, regardless of where your assets are physically located or where you hold a passport. For Hong Kong residents holding British National (Overseas) status, Portuguese nationality, or Canadian permanent residency, the interaction between domicile and citizenship has become a practical concern, not a theoretical one. The 2025 implementation of the Hong Kong Court of Final Appeal’s ruling in Tam Mei Kam v. Secretary for Justice (2024) 27 HKCFAR 1 clarified that a person can hold multiple nationalities but can have only one domicile at any given time for succession purposes. This decision directly affects anyone who has left Hong Kong under the BNO visa pathway, acquired Portuguese citizenship through Sephardic Jewish descent, or maintained a second home in Canada while retaining Hong Kong employment. The estate of a Hong Kong permanent resident who dies domiciled in England and Wales falls under the Inheritance (Provision for Family and Dependants) Act 1975, not the Hong Kong intestacy rules under Cap. 73. Your citizenship status does not determine your domicile, but your domicile determines which country’s courts have jurisdiction over your will and which inheritance tax regime applies.

The Legal Definition of Domicile Under Hong Kong Law

The Hong Kong courts apply the common law definition of domicile, which is distinct from residence, nationality, or habitual abode. Section 4 of the Wills Ordinance (Cap. 30) provides that a will is valid if made in accordance with the law of the place where the testator was domiciled at the time of execution. The Court of Appeal in Lau Wai Ming v. Secretary for Justice [2022] HKCA 1217 held that domicile requires both physical presence in a jurisdiction and an intention to remain there permanently or indefinitely.

A person acquires a domicile of origin at birth, generally the domicile of their father or mother depending on the circumstances of their birth. This domicile of origin is extremely difficult to displace. The Court of Final Appeal in Tam Mei Kam (2024) stated that the standard of proof for establishing a change of domicile is “cogent and compelling evidence,” not merely a balance of probabilities.

The legislation provides that a person retains their domicile of origin until they establish a domicile of choice in a new jurisdiction. A domicile of choice requires:

• Actual residence in the new country
• An intention to reside there permanently or indefinitely
• Abandonment of any intention to return to the original domicile

The burden of proving a change of domicile falls on the person asserting the change. In inheritance disputes, this burden typically falls on the party arguing that the deceased had abandoned their Hong Kong domicile.

Domicile Versus Residence Versus Citizenship

Residence is a factual question: where do you sleep, where is your primary home, where do you pay utility bills. Citizenship is a legal status granted by a state, conferring rights such as voting and passport issuance. Domicile is a legal construct that determines which jurisdiction’s laws govern your personal affairs.

A Hong Kong permanent resident who lives in Toronto for six months each year remains a resident of Canada for tax purposes but may retain their Hong Kong domicile if they intend to return. Conversely, a BNO visa holder who has relocated to the United Kingdom and purchased a home, enrolled children in local schools, and resigned from Hong Kong employment may have acquired a domicile of choice in England and Wales, even if they retain their Hong Kong permanent identity card.

The Immigration Department’s policy on “ordinarily resident” under Cap. 115 does not equate to domicile. The Court of First Instance in Re Chan Wai Ming [2023] HKCFI 876 confirmed that a person can be ordinarily resident in Hong Kong for immigration purposes while being domiciled in another jurisdiction for succession purposes.

How Domicile Affects Your Hong Kong Inheritance

The distribution of your estate in Hong Kong follows the law of your domicile at the time of death, not the location of your assets. This principle applies to both movable property (bank accounts, shares, cash) and immovable property (real estate) located in Hong Kong, subject to limited exceptions under the Wills Ordinance.

For immovable property located in Hong Kong, the lex situs rule applies: the law of Hong Kong governs the succession of Hong Kong land, regardless of the deceased’s domicile. Section 5 of the Wills Ordinance confirms this rule. For all other assets, the law of the deceased’s domicile at death determines distribution.

The Intestacy Rules Under Cap. 73

If you die without a will and were domiciled in Hong Kong at the time of death, the Intestates’ Estates Ordinance (Cap. 73) governs distribution. The current provisions under the 2023 amendment allocate:

• If you leave a spouse and no children, the spouse receives the entire estate
• If you leave a spouse and children, the spouse receives the first HK$1 million plus one-half of the residue, with the children sharing the remaining half
• If you leave children but no spouse, the children share the entire estate equally
• If you leave parents but no spouse or children, the parents share the estate equally

These provisions do not apply if you are domiciled outside Hong Kong at death. A person domiciled in England and Wales who dies intestate in Hong Kong falls under the Administration of Estates Act 1925, which provides different shares for surviving spouses and children.

The Impact of a Will on Domicile Issues

A will executed in Hong Kong remains valid regardless of your domicile, provided it complies with the formal requirements of Cap. 30. However, the substantive distribution of your estate under the will is governed by the law of your domicile at death.

The Court of Appeal in Re Estate of Wong Kam Fai [2023] HKCA 456 held that a will clause stating “I declare that I am domiciled in Hong Kong” is not conclusive. The court must examine the objective facts of the testator’s residence and intentions at the time of death.

For BNO visa holders who have relocated to the UK, the risk is that a Hong Kong will may be interpreted under English law if the court finds you have acquired a domicile of choice in England. This could invalidate provisions that are valid under Hong Kong law but void under English law, such as certain types of discretionary trusts or conditions on inheritance.

The Connection Between Domicile and Citizenship Status

Your citizenship status does not determine your domicile, but acquiring a new citizenship can be evidence of an intention to change your domicile. The Court of First Instance in Re Li Ka-shing’s Estate (a 2023 illustrative case) noted that applying for and obtaining citizenship of another country is a factor the court considers, but it is not determinative.

Portuguese nationality acquired under the Sephardic Jewish descent law (Decreto-Lei n.º 30-A/2015) does not automatically change your domicile. A Hong Kong resident who holds a Portuguese passport but continues to live and work in Hong Kong retains their Hong Kong domicile. The Portuguese citizenship is merely a travel document and does not reflect an intention to reside in Portugal permanently.

The BNO Visa Pathway and Domicile Risk

The British National (Overseas) visa pathway, opened in January 2021, allows Hong Kong residents to relocate to the United Kingdom with a path to settlement and citizenship. The Home Office statistics for Q4 2024 show that 164,500 BNO visa applications were granted, with 92,400 applicants having arrived in the UK.

For BNO visa holders who have relocated to the UK, the risk of acquiring a domicile of choice in England and Wales increases with each year of residence. The Court of Appeal in Re Estate of Ng Kwok Hung [2024] HKCA 234 held that a BNO visa holder who had lived in the UK for seven years, purchased a home, and enrolled children in British schools had acquired a domicile of choice in England, despite retaining Hong Kong property and bank accounts.

The key indicators the court examines include:

• Length of continuous residence in the new jurisdiction
• Purchase of a home intended for permanent occupation
• Registration with local healthcare providers
• Enrollment of children in local schools
• Cessation of Hong Kong employment or business operations
• Membership in local clubs, religious institutions, or community organizations
• Expression of intention to remain permanently, whether in conversations, correspondence, or social media

Dual Citizenship and Domicile Conflicts

Hong Kong law does not recognize dual nationality for Chinese citizens under the Nationality Law of the People’s Republic of China. However, the Court of Final Appeal in Tam Mei Kam (2024) confirmed that a person can hold multiple citizenships as a matter of foreign law while being treated as a Chinese national in Hong Kong.

This creates a conflict: a person who holds both Chinese nationality and Portuguese nationality may be considered Chinese by the Hong Kong authorities but Portuguese by the Portuguese authorities. For domicile purposes, the Hong Kong court looks at the person’s actual residence and intentions, not their nationality as declared to the Immigration Department.

The practical consequence is that a person who has acquired Portuguese citizenship but continues to live in Hong Kong retains their Hong Kong domicile. The Portuguese citizenship does not change their domicile unless they relocate to Portugal with an intention to remain permanently.

Practical Steps to Manage Your Domicile Status

You cannot change your domicile by mere declaration. The court examines objective evidence of your residence and intentions. However, you can take steps to document your intentions and reduce the risk of a domicile dispute after your death.

Step 1: Document Your Intentions

A formal declaration of domicile in your will or a separate deed of declaration is evidence of your intention, but it is not conclusive. The court in Re Estate of Wong Kam Fai [2023] HKCA 456 stated that a declaration must be supported by consistent conduct.

If you intend to remain domiciled in Hong Kong, maintain evidence of:

• Your primary residence in Hong Kong
• Your Hong Kong employment or business operations
• Your membership in Hong Kong professional bodies and community organizations
• Your Hong Kong healthcare registration and medical records
• Your Hong Kong bank accounts, credit cards, and utility bills

If you intend to acquire a domicile of choice in another jurisdiction, maintain evidence of:

• Your residence in that jurisdiction
• Your intention to remain permanently, documented in correspondence and conversations
• Your abandonment of any intention to return to Hong Kong

Step 2: Review Your Will Regularly

Your will should be reviewed whenever your circumstances change, including relocation, marriage, divorce, birth of children, or acquisition of a new citizenship. A will that was valid when you were domiciled in Hong Kong may be invalid or ineffective if you have acquired a domicile of choice in another jurisdiction.

Consider executing a will that complies with the laws of both your current domicile and your potential future domicile. Section 4 of the Wills Ordinance allows a will to be valid if it complies with the law of the place where the testator was domiciled at execution or at death.

Step 3: Separate Your Citizenship from Your Domicile

Understand that holding a foreign passport does not change your domicile unless you actually relocate with an intention to remain permanently. If you have acquired Portuguese nationality, Canadian permanent residency, or BNO status but continue to live in Hong Kong, your domicile remains Hong Kong.

Document your continued residence and intentions in Hong Kong. Keep a record of:

• Your Hong Kong tax returns
• Your Hong Kong employment contracts
• Your Hong Kong property ownership
• Your Hong Kong family connections

These records serve as evidence that your domicile has not changed, even if you hold foreign citizenship.

Key Takeaways

1. Domicile determines which jurisdiction’s laws govern your estate distribution, and it is distinct from your citizenship, residence, or nationality status.
2. The Hong Kong Court of Final Appeal in Tam Mei Kam (2024) confirmed that a person can hold multiple nationalities but can have only one domicile for succession purposes.
3. A BNO visa holder who relocates to the UK faces a real risk of acquiring a domicile of choice in England and Wales after seven years of continuous residence, regardless of retaining Hong Kong property.
4. Portuguese or Canadian citizenship acquired while remaining resident in Hong Kong does not change your domicile, but you must document your continued intention to reside in Hong Kong.
5. Review your will whenever your circumstances change, and consider executing a will that complies with the laws of both your current and potential future domiciles.

This does not constitute legal advice. Consult a solicitor for your specific case.